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Saturday, August 16, 2014

I know very little about Texas criminal laws and procedures, and I know even less about the political and legal in-fighting that appears to have resulted in yesterday's remarkable indictment of Texas Gov Rick Perry on two state felony charges. But I know enough about mandatory minimum sentencing provisions to know Gov Perry might be looking a significant prison time if he is convicted on either of these charges. This lengthy Dallas Morning News article, headlined "Gov. Rick Perry indicted on charges of abuse of power, coercion," provides some of the political and legal backstory (as well as a link to a copy of the two-page indictment):

Republican Rick Perry, becoming the first Texas governor indicted in almost a century, must spend the final five months of his historically long tenure fighting against felony charges and for his political future. A Travis County grand jury on Friday charged Perry with two felony counts, abuse of official capacity and coercion of a public servant, after he vetoed funding for a county office that investigates public corruption.

Special prosecutor Michael McCrum of San Antonio said he felt confident in the case against Perry and was “ready to go forward.” Perry made no statement, but his general counsel, Mary Anne Wiley, said he was exercising his rights and power as governor. She predicted he would beat the charges. “The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution. We will continue to aggressively defend the governor’s lawful and constitutional action, and believe we will ultimately prevail,” she said.

The charges set off a political earthquake in the capital city. Democrats said the indictment underscores Perry’s insider dealing and he should step down. Republicans called it a partisan ploy to derail him, especially aimed at his second presidential run that had been gathering momentum.

The case stems from Perry's erasing $7.5 million in state funding last year for the Travis County Public Integrity Unit. He did so after District Attorney Rosemary Lehmberg, a Democrat, rejected his calls to resign after her drunken driving conviction.

Perry could appear as early as next week to face arraignment on the charges. Abuse of official capacity is a first-degree felony with punishment ranging from five to 99 years in prison, and coercion of a public servant is a third-degree felony with a penalty of two to 10 years.

In announcing the indictment, McCrum said he recognized the importance of the issues at stake. “I took into account the fact that we’re talking about the governor of a state and the governor of the state of Texas, which we all love,” he said. “Obviously, that carries a level of importance. But when it gets down to it, the law is the law.”...

The allegations of criminal wrongdoing were first filed by Craig McDonald, director of the nonprofit campaign watchdog group Texans for Public Justice. McDonald has maintained that using veto threats to try to make another elected official leave was gross abuse of office. “The grand jury decided that Perry’s bullying crossed the line into lawbreaking,” he said Friday. “Any governor under felony indictment ought to consider stepping aside.”

State Republican Party chairman Steve Munisteri decried the prosecution as politically motivated. “Most people scratch their heads and wonder why we’re spending taxpayer dollars to try to put somebody in jail for saying that they didn’t feel it was appropriate to fund a unit where the person in charge was acting in a despicable way,” Munisteri said....

A judge from conservative Williamson County, a suburban area north of Austin, appointed McCrum to look into the case. The current grand jury has been studying the charges since April. McCrum worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration. He’s now in private practice, specializing in white-collar crimes....

McCrum, a former federal prosecutor, said he interviewed up to 40 people as part of his investigation, reviewed hundreds of documents and read dozens of applicable law cases. He dismissed the notion that politics played any part. “That did not go into my consideration whatsoever,” he said. Asked why he never called Perry before the grand jury, McCrum said, “That’s prosecutorial discretion that I had.”

Of course, what makes this story so very notable from a criminal justice perspective is the extraordinary power and discretion that the special prosecutor had in developing these charges and the extraordinary impact that mere an indictment seems likely to have on Gov Perry professional and personal life.

Regular readers know that former commentor Bill Otis and I often went back-and-forth in the comments concerning my concerns about (and his support for) federal prosecutors have very broad, unchecked, hidden and essentially unreviewable charging and bargaining powers. For this reason, I was especially interested to see that Bill now already has these two new posts up over at Crime and Consequences assailing the charging decision by the (former federal) prosecutor in the Perry case: The World's Most Absurd Indictment and Politics & Prosecution, a Toxic Brew. I am hopeful (though not really optimistic) that the Perry indictment might help Bill better appreciate why I have such deep concerns about prosecutorial discretion as exercised by federal prosecutors (especially when their powers are functionally increased by severe mandatory minimum sentencing provisions).

Thursday, August 14, 2014

US Sentencing Commission finalizes its policy priorities for coming year

As detailed in this official press release, the "United States Sentencing Commission today unanimously approved its list of priorities for the coming year, including consideration of federal sentences for economic crimes and continued work on addressing concerns with mandatory minimum penalties." Here is more from the release:

The Commission once again set as its top priority continuing to work with Congress to implement the recommendations in its 2011 report on federal mandatory minimum penalties, which included recommendations that Congress reduce the severity and scope of some mandatory minimum penalties and consider expanding the “safety valve” statute which exempts certain low-level non-violent offenders from mandatory minimum penalties....

The Commission also set out its intention to consider potential changes to the guidelines resulting from its multi-year review of federal sentences for economic crimes. “For the past several years, we have been reviewing data and listening to key stakeholders to try to determine whether changes are needed in the way fraud offenses are sentenced in the federal system, particularly in fraud on the market cases,” Saris said. “We look forward to hearing more this year from judges, experts, victims, and other stakeholders on these issues and deciding whether there are ways the economic crime guidelines could work better.”

The Commission will continue to work on multi-year projects to study recidivism comprehensively, including an examination of the use of risk assessment tools in the criminal justice system. The Commission will also consider whether any amendments to the guidelines or statutory changes are appropriate to facilitate consistent and appropriate use of key sentencing terms including “crime of violence” and “drug trafficking offense.”

The Commission is undertaking new efforts this year to study whether changes are needed in the guidelines applicable to immigration offenses and whether structural changes to make the guidelines simpler are appropriate, as well as reviewing the availability of alternatives to incarceration, among other issues.

The official list of USSC priorities is available at this link, and I found these items especially noteworthy (in addition to the ones noted above):

(4) Implementation of the directive to the Commission in section 10 of the Fair Sentencing Act of 2010, Pub. L. 111–220 (enacted August 3, 2010) (requiring the Commission, not later than 5 years after enactment, to “study and submit to Congress a report regarding the 3 impact of the changes in Federal sentencing law under this Act and the amendments made by this Act”)....

(10) Beginning a multi-year effort to simplify the operation of the guidelines, including an examination of (A) the overall structure of the guidelines post-Booker, (B) cross references in the Guidelines Manual, (C) the use of relevant conduct in offenses involving multiple participants, (D) the use of acquitted conduct in applying the guidelines, and (E) the use of departures.

Sunday, August 03, 2014

Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting made headlines mostly due to his expression of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here). I will discuss AG Holder's nuanced comments on this front in some future posts.

Before discussing the use of risk assessment instruments in initial sentencing determinations, I first want to recommend that everyone read all of AG Holder's NACDL speech, which is available here, because it includes a number of notable passages addressing a number of notable sentencing topics. Of particular note, these paragraphs seek to debunk the oft-heard statements that reform of mandatory minimum sentencing provisions could prevent prosecutors from securing needed cooperation from defendants:

[T]he Smart on Crime initiative has led us to revise the Justice Department’s charging policies with regard to mandatory minimum sentences for certain federal, drug-related crimes — so that sentences will be determined based on the facts, the law, and the conduct at issue in each individual case. This means that the toughest penalties will now be reserved for the most serious criminals. Over the last few months — with the Department’s urging — the U.S. Sentencing Commission has taken additional steps to codify this approach, amending federal sentencing guidelines for low-level drug trafficking crimes to reduce the average sentence by nearly 18 percent. Going forward, these new guidelines will impact almost 70 percent of people who are convicted of these offenses. And last month, the Commission voted to allow judges to apply these revised guidelines retroactively in cases where reductions are warranted.

Now, some have suggested that these modest changes might somehow undermine the ability of law enforcement and prosecutors to induce cooperation from defendants in federal drug cases. But the reality is that nothing could be further from the truth.

Like anyone who served as a prosecutor in the days before sentencing guidelines existed and mandatory minimums took effect, I know from experience that defendant cooperation depends on the certainty of swift and fair punishment, not on the disproportionate length of a mandatory minimum sentence. As veteran prosecutors and defense attorneys surely recall — and as our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, has often reminded his colleagues — sentencing guidelines essentially systematized the kinds of negotiations that routinely took place in cases where defendants cooperated with the government in exchange for reduced sentences. With or without the threat of a mandatory minimum, it remains in the interest of these defendants to cooperate. It remains in the mutual interest of defense attorneys and prosecutors to engage in these discussions. And any suggestion that defendant cooperation is somehow dependent on mandatory minimums is plainly inconsistent with the facts and with history.

Far from impeding the work of federal prosecutors, these sentencing reforms that I have mandated represent the ultimate expression of confidence in their judgment and discretion. That’s why I’ve called on Congress to expand upon and further institutionalize the changes we’ve put in place — so we can better promote public safety, deterrence, and rehabilitation while saving billions of dollars and reducing our overreliance on incarceration.

Friday, August 01, 2014

Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform

I have previously questioned the assertion that significant federal sentencing reform is inevitable, and the failure of the current Congress to make serious progress on the Smarter Sentencing Act or other notable pending federal sentencing reform proposals has reinforced my generally pessimistic perspective. But this effective new article from the Washington Examiner, headlined "2016 contenders are lining up behind sentencing reform --- except this one Tea Partier," provides further reason to be optimistic that federal sentencing reform momentum will continue to pick up steam in the months ahead. Here are highlights:

Sen. Marco Rubio hasn’t hammered out a firm position on mandatory minimum sentencing laws yet. A year ago, that would have been perfectly normal for a Republican senator and rumored presidential contender. But over the last months, most of the potential Republican nominees have voiced support for policy changes that historically might have gotten them the toxic “soft on crime” label. These days, though, backing prison reform lets Republicans simultaneously resurrect compassionate conservatism and reach out to voters who wouldn’t typically find much to love from the GOP.

Rep. Paul Ryan is one of the latest potential presidential candidates to tout mandatory minimum sentencing reform as part of a conservative strategy to reduce poverty.... [H]e has debuted a new anti-poverty agenda that includes support for the Smarter Sentencing Act, a bill with a Senate version co-sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Tea Party favorite Sen. Mike Lee, R-Utah, and a House version from Rep. Bobby Scott, D-Va., and Raul Labrador, R-Idaho. That bill would shorten some of the mandatory minimum sentence lengths and also would expand the “safety valve” that keeps some non-violent drug offenders from facing mandatory sentences.

“It would give judges more discretion with low-risk, non-violent offenders,” Ryan said in a speech at conservative think tank American Enterprise Institute. “All we’re saying is, they don’t have to give the maximum sentence every time. There’s no reason to lock someone up any longer than necessary.”

Ryan is the latest in a string of potential presidential contenders to get on board with prison reform. But it’s likely the state of criminal justice reform would look different without Texas Gov. Rick Perry. In 2007, the Texas legislature adopted a budget designed to reduce the number of people incarcerated and spend more money on treatment. Since then, the state has closed three adult and six juvenile prisons, crime rates have reached levels as low as in the 1960s, and recidivism rates have dipped.

Perry has used his national platform to tout this reform — at a Conservative Political Action Conference (panel with Americans for Tax Reform President Grover Norquist, for instance, he said real conservatives should look to shut down prisons and save money — and other states have adopted reforms following the Lone Star State model.

Sen. Rand Paul, another 2016 favorite, has been one of prison reform’s most vocal boosters. In an April 2013 speech at Howard University — a speech that got mixed reviews — he drew plaudits for criticizing mandatory minimum sentencing laws. “Our federal mandatory minimum sentences are simply heavy-handed and arbitrary,” he said, per CNS News. “They can affect anyone at any time, though they disproportionately affect those without the means to fight them. We should stand and loudly proclaim enough’s enough.”

That speech took prison reform one step closer to becoming a national conservative issue, rather than just the purview of state-level think tank wonks and back-room chats among social conservative leaders.

And, of course, New Jersey Gov. Chris Christie addressed the issue in his second inaugural, connecting support for prison reform to his pro-life convictions.

None of this support means that legislation like the Smarter Sentencing Act has good odds in this Congress. Brian Phillips, a spokesman for Lee, said that since House Majority Leader Eric Cantor’s astounding primary loss, House Republicans have become more gun-shy about any sort of politically complicated reform measures. And GovTrack.us gives that bill a 39 percent chance of being enacted.

But that doesn’t mean conservative appetite for prison reform will abate. Molly Gill, government affairs counsel for Families Against Mandatory Minimums, said interest in the issue is growing. “ It can’t go away,” she said. “If Congress doesn’t fix it now, it’s still going to be a problem next year. It’s going to be a problem at the Department [of Justice], it’s going to be a problem in appropriations committees, it’s going to be a problem for the Commerce, Justice and Finance subcommittees when they’re doing appropriations bills — because there is no more money coming, and we’re just going to keep stuffing people into overcrowded prisons.”...

For now, most of the Senate Republicans publicly eyeing 2016 bids have co-sponsored Lee and Durbin’s Smarter Sentencing Act — except Rubio, who said his office is examining it. “I haven’t looked at the details of it yet and taken a formal position,” he said. “We study those things carefully.”

Monday, July 28, 2014

US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice

Regular readers are likely familiar with the remarkable series of opinions issued by US District Judge John Gleeson in which he has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. But, as reported in this New York Times piece, headlined "Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose," Judge Gleeson's latest opinion discusses how federal prosecutors ultimately aided his efforts to undo an extreme mandatory minimum sentence. Here are the basics:

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts. But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions. The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.

“Prosecutors also use their power to remedy injustices,” Judge Gleeson wrote in a memorandum released on Monday. “Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.”...

Mr. Holloway was charged in 1995 with three counts of carjacking and using a gun during a violent crime (even though it was an accomplice, and not Mr. Holloway, who carried the gun), along with participating in the chop shop. The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.

For the first conviction on the gun count, the law required Mr. Holloway to receive five years. But for the second and third convictions, the law required 20 years for each one, served consecutively, a requirement known as “stacking,” which some judges and lawyers argue sounds like a recidivism provision, although it can be applied for crimes, like Mr. Holloway’s, committed hours apart that are part of the same trial.

None of Mr. Holloway’s co-defendants, who all pleaded guilty, received more than six years. At Mr. Holloway’s sentencing in 1996, Judge Gleeson said that “by stripping me of discretion,” the stacked gun charges “require the imposition of a sentence that is, in essence, a life sentence.” (The remainder of the 57 years was the 12 years required for the three carjackings.)...

At a hearing on the Holloway case this month, an assistant United States attorney, Sam Nitze, said that “this is both a unique case and a unique defendant,” citing his “extraordinary” disciplinary record and his work in prison. Also, he said, three of Mr. Holloway’s carjacking victims have said that the 20 years that Mr. Holloway had served in prison was “an awfully long time, and people deserve another chance.” Mr. Nitze agreed to vacate the two convictions, while emphasizing that this should not be taken as indicative of Ms. Lynch’s view on the stacking provision in other cases.

In his opinion issued last week, Judge Gleeson said that Mr. Holloway’s sentence illustrated a “trial penalty,” where those willing to risk trial could be hit with mandatory minimum sentences “that would be laughable if only there weren’t real people on the receiving end of them.”

Judge Gleeson's full 11-page opinion in Holloway v. US, No. 01-CV-1017 (E.D.N.Y. July 28, 2014)(available for download below), is a must-read for lots of reasons. The opinion is not be easily summarized, but this part of its conclusion provide a flavor of what comes before:

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized.

This case is a perfect example. Holloway was convicted of three armed robberies. He deserved serious punishment. The judgment of conviction in his case was affirmed on direct review by the Supreme Court, and his collateral attack on that judgment failed long ago. His sentence was far more severe than necessary to reflect the seriousness of his crimes and to adequately protect the community from him, but no one would criticize the United States Attorney if she allowed it to stand by doing nothing. By contrast, the decision she has made required considerable work. Assistant United States Attorney Nitze had to retrieve and examine a very old case file. He had to track down and interview the victims of Holloway’s crimes, which were committed 20 years ago. His office no doubt considered the racial disparity in the use of § 924(c), and especially in the “stacking” of § 924(c) counts. He requested and obtained an adjournment so his office could have the time necessary to make an extremely important decision....

This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices....

A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.

Numerous lawyers have been joining pro bono movements to prepare clemency petitions for federal prisoners, and indeed the Department of Justice has encouraged the bar to locate and try to help deserving inmates. Those lawyers will find many inmates even more deserving of belated justice than Holloway. Some will satisfy the criteria for Department of Justice support, while others will not. In any event, there’s no good reason why all of them must end up in the clemency bottleneck. Some inmates will ask United States Attorneys for the kind of justice made possible in this case, that is, justice administered not by the President but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced. Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.

Thursday, July 24, 2014

As reported in this official press release, House Budget Committee Chair Paul Ryan today "released a new discussion draft, 'Expanding Opportunity in America,' [which] proposes a new pilot project to strengthen the safety net and discusses a number of reforms to the EITC, education, criminal justice, and regressive regulation." Notably, an extended section of this impressive document (Chapter 4, which runs nearly 10 of the draft's 70+ pages) is focused on criminal justice reforms. Here are segments from this portion of the draft:

About 2.2 million people are currently behind bars — a more than 340 percent increase since 1980. As a result, we spend about $80 billion on corrections at all levels of government — an inflation-adjusted increase of over 350 percent in that same period. This growing cost burden on society is a cause for concern. But perhaps what’s most troubling is the effect on individuals and families....

[Federal sentencing reform] seeks to tap this overlooked potential and ameliorate the collateral impact on children and families. Although most offenders are in state prisons or local jails, successful reforms at the federal level could encourage states and local governments to follow their example. This discussion draft explores a number of reforms on multiple fronts — how we sentence individuals to prison, how offenders are treated inside prison, and how society helps them to reintegrate afterwards.

Public safety is priority No. 1, so these reforms would apply to only non-violent and low-risk offenders. The punishment should fit the crime, but in many cases the punishment of incarceration extends beyond prison time. Once people have paid their debt to society, they should be able to move on. In that spirit, this proposal suggests three possible reforms:

• Implement a risk- and needs-assessment system in federal prisons while expanding enrollment in rehabilitative programming to reduce recidivism. Allow non-violent and low-risk inmates to use enrollment to earn time off their prison stay towards prerelease custody.

• Partner with reforms at the state and local level....

Unlike state inmates, only 6 percent of federal inmates are violent offenders, while another 15 percent are guilty of weapons offenses. In fact, most federal prisoners—nearly 51 percent — are serving time for a drug-related offense, and data from the U.S. Sentencing Commission shows that most of these federal drug offenders are in the lowest criminal-history category. But under current law, a single gram of crack cocaine could be all that separates a convict from a less-than-five-year sentence and a 40-year sentence. Rigid and excessive mandatory sentences for low-level drug offenders, like these, may add to an already over-crowded prison system without appreciably enhancing public safety.

There are also economic and social consequences to unreasonably long sentences. Not only do they put undue burdens on families, but they may actually make people more likely to return to crime. As Justice Fellowship notes, “Rather than encouraging criminals to become peaceful, productive citizens, prison culture often has the opposite effect, operating as a graduate school for crime.” The federal government should follow the lead of several states and consider how sentencing guidelines, including alternative forms of detention, can both prevent crime and steer non-violent, low-risk drug offenders away from the addictions and networks that make them more likely to reoffend....

Although crime rates have fallen since the 1980s, the unintended consequence of these mandatory minimums is that some low-risk, non-violent offenders serve unreasonably long sentences....

A major challenge of criminal-justice reform is lowering the high rates of recidivism. High rates of recidivism are not only costly to the taxpayer and dangerous for society; they present a missed opportunity to bring more individuals into society as productive and contributing members....

[Proposed] reforms seek to put a greater focus upon rehabilitation and reintegration. Although the federal government’s reach is limited, these reforms would give judges the discretion they need to prevent nonviolent offenders from serving unreasonably long sentences; they would align inmates’ incentives to help reduce recidivism; and they would partner with states and community groups to expand their life-affirming work.

Friday, July 18, 2014

Thanks to a helpful reader, I learned this afternoon that the Iowa Supreme Court today declared unconstitutional pursuant to the Iowa Constitution the imposition of any and all mandatory terms of imprisonment on juvenile offenders. The majority ruling in Iowa v. Lyle, No. 11–1339 (Iowa July 18, 2014)

In this appeal, a prison inmate who committed the crime of robbery in the second degree as a juvenile and was prosecuted as an adult challenges the constitutionality of a sentencing statute that required the imposition of a mandatory seven-year minimum sentence of imprisonment. The inmate was in high school at the time of the crime, which involved a brief altercation outside the high school with another student that ended when the inmate took a small plastic bag containing marijuana from the student. He claims the sentencing statute constitutes cruel and unusual punishment in violation of the State and Federal Constitutions when applied to all juveniles prosecuted as adults because the mandatory sentence failed to permit the court to consider any circumstances based on his attributes of youth or the circumstances of his conduct in mitigation of punishment. For the reasons expressed below, we hold a statute mandating a sentence of incarceration in a prison for juvenile offenders with no opportunity for parole until a minimum period of time has been served is unconstitutional under article I, section 17 of the Iowa Constitution. Accordingly, we vacate the sentence and remand the case to the district court for resentencing. Importantly, we do not hold that juvenile offenders cannot be sentenced to imprisonment for their criminal acts. We do not hold juvenile offenders cannot be sentenced to a minimum term of imprisonment. We only hold juvenile offenders cannot be mandatorily sentenced under a mandatory minimum sentencing scheme.

The majority opinion supporting this ruling runs nearly 50 pages and, unsurprisingly, has a lot to say about the US Supreme Court's recent Eighth Amendment work in Graham and Miller. In addition, two forceful dissents follow the majority's opinion in Lyle, and here is the heart of one of the dissenting opinions:

By holding Lyle’s seven-year mandatory minimum sentence for his violent felony is cruel and unusual punishment and unconstitutional under article I, section 17 of the Iowa Constitution, rather than under the Eighth Amendment, the majority evades review by the United States Supreme Court. As Justice Zager observes, no other appellate court in the country has gone this far. Our court stands alone in taking away the power of our elected legislators to require even a seven-year mandatory sentence for a violent felony committed by a seventeen-year-old. Will the majority stop here? Under the majority’s reasoning, if the teen brain is still evolving, what about nineteen-year olds? If the brain is still maturing into the mid-20s, why not prohibit mandatory minimum sentences for any offender under age 26? As judges, we do not have a monopoly on wisdom. Our legislators raise teenagers too. Courts traditionally give broad deference to legislative sentencing policy judgments. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“We give the legislature deference because ‘[l]egislative judgments are generally regarded as the most reliable objective indicators of community standards for purposes of determining whether a punishment is cruel and unusual.’ ” (quoting Bruegger, 773 N.W.2d at 873)). Why not defer today?

Sunday, July 13, 2014

This past Friday, US Sentencing Commission Chair, Chief Judge Patti Saris, testified at this hearing of Over-Criminalization Task Force of the Committee on the Judiciary of the US House of Representatives. Her lengthy written testimony is available at this link, and here is a summary paragraph from the Chair's discussion of recommended mandatory minimum reforms:

Based on [our] analysis, the Commission continues to recommend unanimously that Congress consider a number of statutory changes. The Commission recommends that Congress reduce the current statutory mandatory minimum penalties for drug trafficking. We further recommend that the provisions of the Fair Sentencing Act of 2010, which Congress passed to reduce the disparity in treatment of crack and powder cocaine, be made retroactive. Finally, we recommend that Congress consider expanding the so-called “safety valve,” allowing sentences below mandatory minimum penalties for non-violent low-level drug offenders, to offenders with slightly greater criminal histories than currently permitted.

Republican and Democratic members of this Task Force and others in Congress have proposed legislation to reform certain mandatory minimum penalty provisions. The Commission strongly supports these efforts to reform this important area of the law.

Notably, as this official press release highlights, Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee, echoed similar messages in he testimony to the House Task Force:

A representative of the Judicial Conference today told a House Judiciary Task Force that policy initiatives curbing over-federalization of criminal law, reforming mandatory minimum sentences and amending the Sentencing Guidelines have the support of the Judicial Conference, but that the Judiciary currently lacks the resources to shoulder resulting increased workload.

“Policy-makers must not create a new public safety crisis in our communities by simply transferring the risks and costs from the prisons to the caseloads of already strained probation officers and the full dockets of the courts,” said Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee. “Lasting and meaningful solutions can be attained only if the branches work together to ensure that the correct cases are brought into the federal system, just sentences are imposed, and offenders are appropriately placed in prison or under supervision in the community.”

Wednesday, July 09, 2014

"States Push For Prison Sentence Overhaul; Prosecutors Push Back"

The title of this post is the headline of this new NPR story highlighting who is at the forefront of efforts to thwart sentencing reforms these days. Here are excerpts:

Some red states like Louisiana and Texas have emerged as leaders in a new movement: to divert offenders from prisons and into drug treatment, work release and other incarceration alternatives. By most counts, Louisiana has the highest incarceration rate in the country. In recent years, sentencing reformers in the capital, Baton Rouge, have loosened some mandatory minimum sentences and have made parole slightly easier for offenders to get.

But as reformers in Louisiana push for change, they're also running into stiffening resistance — especially from local prosecutors. It's all happening as the number of Americans behind bars has started to decline. There are multiple reasons for that, including crime rates that have been dropping since the 1990s, as well as the impact of the Supreme Court's 2011 requirement that tough-on-crime California reduce its prison population.

And there's another factor: a growing bipartisan consensus for sentencing reform. Local politicians are getting political cover for those efforts from conservative groups like Right on Crime. "It is a growing consensus on the right that this is the direction we want to be going," says Kevin Kane, of the libertarian-leaning Pelican Institute for Public Policy in Louisiana. "Most people will point to, 'Well, it's saving money, and that's all conservatives care about.' But I think it goes beyond that."

Kane says libertarians are interested in limiting the government's power to lock people away, while the religious right likes the idea of giving people a shot at redemption — especially when it comes to nonviolent drug offenders.

Still, not everyone is embracing these ideas. In some places, there's been considerable pushback — especially when the idea of eliminating prison time for drug offenders arises....

Liz Mangham, a lobbyist, has represented the conservative sentencing reformers in Baton Rouge. While they've made progress, she says they appeared to cross a red line this spring with a bill to step down Louisiana's stiff penalties for possession of marijuana. Under current law, possession is a felony on the second offense. A third may get you as much as 20 years in prison. Mangham recalls the scene when the bill came up for a crucial hearing.

"The Judiciary Committee room was full. The anteroom across the hall, which is twice the size, was full, and the halls were full ... of [district attorneys] and sheriffs coming down to oppose the bill," she says. The bill died on the spot. In Louisiana and other parts of the South, district attorneys and sheriffs — who Mangham calls "the courthouse crowd" — have a lot of political clout at the state level. She says it's understandable why most sheriffs opposed the bill, because they house state prisoners in parish jails and every prisoner represents a payment from the state.

"So when you're making money to warehouse prisoners, why on earth would you be in favor of sentencing reform?" Mangham says.

But the district attorneys' opposition is more complex — and interesting. And it's emblematic of a growing conflict that's taking place nationally between sentencing reformers and prosecutors.

The vast majority of criminal cases in America are resolved through plea bargains. Defendants plead guilty out of fear of getting a worse sentence if they don't. Plea bargains jumped above 90 percent in the 1980s and '90s, in part because a wave of harsh new sentences for drug offenses strengthened prosecutors' hands when bargaining with defendants.

"For a DA to have the ability to dangle over someone's head 10, 20 years in jail, that provides them with tremendous leverage to pretty much get whatever they want," says Louisiana State Sen. J.P. Morrell, a Democrat from New Orleans and former public defender.

Morrell was one of the sponsors of the marijuana sentencing reform bill that failed in Baton Rouge. He says one of the benefits of that reform would have been a reduction in the power of prosecutors to, as Louisiana courthouse slang puts it, "bitch" a defendant. A reference to Louisiana's habitual offender law, it refers to a DA threatening to use past convictions — often for marijuana possession — to multiply the length of a defendant's potential sentence.

But what Morrell sees as a problem, prosecutors regard as a necessary tool. That's because many states are now considering similar reductions to mandatory minimum sentences for drug offenses, and Congress is considering a similar move for federal drug charges. Prosecutors insist they use the threat of harsh sentences responsibly but say it's a tool they can't do without. Last fall, at a hearing in the U.S. Senate Judiciary Committee, the then-executive director of the National District Attorneys Association, Scott Burns, warned against rolling back drug sentences.

"Why now? With crime at record lows, why are we looking at sweeping changes?" Burns said. He endorsed "smart on crime" reforms such as drug courts, but he cautioned against depriving prosecutors of "one of our most effective sticks."

John de Rosier, the district attorney of Calcasieu Parish, La., says "we have people all the time that we know have been involved in robberies, rapes and murders. We haven't been able to prove our cases, but we're in court with them for second-offense possession of marijuana. What do you think we're going to do?"

That's commonly referred to as "prosecutorial discretion," and it's an argument that alarms sentencing reformers like Morrell. "That level of discretion ought to be terrifying to people," Morrell says. "If you cannot convict someone of a murder, of a robbery, whatever, the fact that you have a disproportionate backup charge to convict them anyway kind of defeats the purpose of due process."

Tuesday, July 08, 2014

Even as its prospects dim, Smarter Sentencing Act is impacting federal sentencing proceedings

The lack of serious congressional action on the Smarter Sentencing Act now nearly six months after the SSA passed through the Senate Judiciary Committee with bipartisan support (basic here) has led me to conclude that the prospect of the SSA's enactment into law this year is now quite dim. Nevertheless, as highlighted by this local story from Maine, the SSA is still impacting the work of federal sentencing courts. The article is headlined "Monroe marijuana farm patriarch sentence postponed for Smarter Sentencing Act passage," and here are the basics:

A federal judge postponed the sentencing of a Waldo County man found guilty in November of operating a large-scale, indoor marijuana farm with his family to allow for the possible passage of the Smarter Sentencing Act, which could decrease his sentence. James F. Ford, 58, of Monroe was convicted by a jury in November of one count each of conspiracy to manufacture 100 or more marijuana plants, manufacturing 100 or more marijuana plants, maintaining a drug-involved place and being a felon in possession of a firearm.

The Smarter Sentencing Act, introduced by U.S. Sens. Mike Lee, R-Utah, and Richard Durbin, D-Illinois, is a bill making its way through the Senate that would reduce mandatory minimum sentences for some nonviolent drug offenders and allow those incarcerated to apply for sentence reductions, among other changes to mandatory federal sentencing laws.

“The Smarter Sentencing Act may have a drastic effect on Mr. Ford’s sentence,” states the motion filed by defense attorney Hunter Tzovarras of Bangor. ”In the interest of fairness and justice, it is respectfully requested the court use its discretion and continue the sentencing until November 2014.”...

Assistant U.S. Attorney Andrew McCormack objected to the defense motion, saying the bill might not provide the desired reductions and there is a possibility the delay could mean the government could lose the right to seize the Fords’ home, where the marijuana growing took place. “It is pure conjecture at this time as to the final form, if any, the Smarter Sentencing Act will take,” McCormack said in his opposing motion. “Even if the Act does eventually pass, it is almost certain to be in a form different than the current bill."...

U.S. District Judge John Woodcock Jr. agreed with Tzovarras and postponed Ford’s sentencing until Nov. 21, 2014. Ford, who was convicted of growing marijuana in Massachusetts, moved the family pot-growing operation from Massachusetts to Monroe after he completed a sentence of probation in the Bay State, McCormack told the jury in his closing argument in Ford’s trial.

Due to the Massachusetts conviction, Ford faces a mandatory minimum of 10 years and maximum of life in prison and a fine of up to $8 million on the conspiracy charge under the current federal sentencing guidelines....

Members of the Ford family were arrested in November 2011 when the Maine Drug Enforcement Agency raided the family’s Swan Lake Avenue garage, and found hundreds of thousands of dollars worth of marijuana. During the raid, police seized more than 300 marijuana plants in various stages of growth, 10 pounds of processed marijuana and two semiautomatic assault weapons. Tzovarras, in his Monday motion, states the Smarter Sentencing Act, if passed, would reduce mandatory minimum sentences for manufacturing, distribution, dispensing, possession and importing or exporting specific controlled substances. “If the court determines a mandatory minimum penalty applies to Mr. Ford, that mandatory [minimum] penalty would be reduced by half, from 10 to 5 years,” the defense attorney states.

Monday, June 23, 2014

Another account of how ACCA interpretation aggravation endures, this time in Maryland

Sentencing fanatics know full well the multi-dimensional jurisprudential mess that is application of the Armed Career Criminal Act in federal courts, and this lengthy Baltimore Sun article details how crabby these ACCA problems have become in Maryland. (Hat tip: How Appealing.) The piece is headlined "Sentences challenged for Maryland prisoners deemed to have violent pasts: Supreme Court ruling triggers wide-ranging review in dozens of cases," and here are excerpts:

A little-noticed and highly technical Supreme Court decision is opening the way for dozens of federal inmates from Maryland to seek reduced sentences — even though trial judges found they had violent criminal pasts. For some, the high court decision has already meant that sentences of 15 years and more have been cut substantially. One inmate, for example, saw his sentence reduced from 15 years to about six years; he was released in February....

Prosecutors, including Maryland U.S. Attorney Rod J. Rosenstein, said lengthy sentences are necessary to rid the streets of violent offenders who continue to carry guns or commit other crimes. "Defendants who indisputably committed violent crimes will get a break as result of this opinion," he said.

But advocates for the inmates say such sentences, which take certain previous convictions into account, are used indiscriminately and undermine the judiciary's role in crafting fair punishments. "The petitions I've filed are going to undo the unjust incarceration of lots of people who should never have gotten these mandatory sentences," said Paresh S. Patel, an appeals attorney at the federal public defender's office. The office has filed challenges on behalf of 55 inmates and plans to pursue 13 more.

The petitions follow a 2013 Supreme Court decision that tweaked the way federal judges evaluate a defendant's criminal history when setting sentences in certain cases. Subsequent lower court decisions opened the way to the wave of challenges in Maryland....

A Reagan-era federal law called the Armed Career Criminal Act turns the 10-year maximum penalty for a felon ... possessing a gun or ammunition into a 15-year minimum for anyone previously convicted of three or more "violent felonies" or "serious drug offenses." But determining which state laws should be included in those categories has continually vexed the courts.

The Supreme Court case dealt with California's burglary statute, which covers everything from shoplifting to a violent break-in. Federal judges had previously looked at the details of some prior convictions to determine whether an offender should be considered violent.... But the Supreme Court said that approach by judges is unreliable. "The meaning of those documents will often be uncertain," Justice Elena Kagan wrote for the majority. "And the statements of fact in them may be downright wrong."

Instead, Kagan wrote, sentencing judges should only consider whether the barest elements of the crime — those that prosecutors must prove beyond a reasonable doubt — make the offense necessarily violent. According to the high court, California's burglary law did not qualify. Neither did Maryland's second-degree assault statute, which covers everything from unwanted touching to a violent beating, the 4th U.S. Circuit Court of Appeals ruled later.

In the aftermath of that ruling, at least one inmate convicted in Maryland, Ronald Hamby, has already been released.... He was convicted on a federal gun charge in 2007 and, because he had three prior second-degree assaults on his record, received a 15-year sentence.

Judge William D. Quarles Jr. said at Hamby's sentencing that he regretted the term he had to impose. He added, "Mr. Hamby, sentencing is never a pleasure for a judge, and there are some things that make it considerably less pleasant, such as sending a 26-year-old person away for 15 years."

Attorney Joseph L. Evans, who defended Hamby at trial, said in a recent interview that his client was not the kind of person the law was intended to target. Evans said the assaults "weren't stranger-on-stranger incidents. It wasn't like some sort of gang activity, or drug-related activity. It was youngish guys acting out in stupid ways that violated the law." After the Supreme Court ruling, Hamby challenged his 15-year sentence and was resentenced to the time he had already served in prison plus two weeks. He was released from federal custody in February.

Patel said the federal public defender's office is seeking to revise sentences in gun cases as well as others in which defendants were marked as career offenders.

While all the cases in dispute differ, Rosenstein said his office faces a difficult time upholding the long prison terms it originally secured. He called new interpretations of sentencing laws "one-way ratchets in favor of the defendants." Had prosecutors known the sentences were vulnerable, Rosenstein said, they might have used a different strategy — pursuing a different combination of charges, for example — to obtain a similar outcome.

Mary Price, general counsel of the advocacy group Families Against Mandatory Minimums, said that is one of the benefits of the Supreme Court ruling. Rather than letting prosecutors depend on the mandatory sentences, the new approach will require them to work a bit harder to convince judges to hand out long prison terms, keeping the bench as a check on the system, she said. "Mandatory minimums provide prosecutors control over what the sentence is," Price said. "That whole setup has a problem with it."

Sunday, June 22, 2014

New York Times editorial laments stalled federal sentencing reform

Today's New York Times has this lengthy editorial, headlined "Sentencing Reform Runs Aground," expressing justified concerning that bipartisan support for federal sentencing reform has not yet been enough to secure legislative action. Here are excerpts:

Criminal justice reform is one of the rare issues on which there has been bipartisan support in Congress and significant progress toward a legislative solution. Until recently, anyway.

Two bills, each with Republican and Democratic sponsors, were expected to come up for a vote by this summer — one that would reduce lengthy sentences for many low-level drug offenders and another that would give low-risk inmates credit toward early release if they participate in job-training and drug treatment programs. But progress on both bills has stalled, and congressional leaders who were once confident about their chances this year are now looking toward 2015, at the earliest.

Meanwhile, tens of thousands of federal inmates — many of whom have already served years of unjustly long drug sentences — continue to sit in overstuffed prisons, wasting both their lives and taxpayer dollars at no demonstrable benefit to public safety....

So why the delay? One major factor has been resistance from members of the old guard, who refuse to let go of their tough-on-crime mind-set. In May, three senior Republican senators — Charles Grassley of Iowa, John Cornyn of Texas and Jeff Sessions of Alabama — came out against the sentencing reductions, arguing that mandatory minimums are only used for the highest-level drug traffickers. This assertion is contradicted by data from the United States Sentencing Commission, which found that 40 percent of federal drug defendants were couriers or low-level dealers.

Another factor was the Obama administration’s April announcement that it would consider clemency for hundreds, if not thousands, of inmates currently serving time under older, harsher drug laws. Republicans complained that this — along with other executive actions on criminal justice by Mr. Obama and Attorney General Eric Holder Jr. — took the wind out of reform’s sails.

But with the exception of some old-line prosecutors and resistant lawmakers, everyone still agrees on the need for extensive reform. The other branches of the federal government have begun to do their part: Federal judges across the country have spoken out against the mindlessness of mandatory minimums. The sentencing commission voted in April to reduce many drug sentencing guidelines. And the Justice Department under Mr. Holder has taken multiple steps to combat the harsh and often racially discriminatory effects of those laws.

The public is on board too. According to a recent Pew survey, 67 percent say the government should focus more on treating drug users than on prosecuting them.

Some members of Congress get it. On the right, the charge for reform has been led by Rand Paul of Kentucky, Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona. Yet the prospect of reform has become more precarious, even as the need for it has become more urgent.

Judicial pronouncements and executive orders only go so far. It is long past time for Congress to do its job and change these outdated, ineffective and unjust laws.

Sunday, June 15, 2014

"Lawmakers should be parsimonious — not sanctimonious — on drug sentencing"

The title of this post is the headline of this new commentary at The Hill authored by Jamie Fellner. Here are excerpts:

Hopes are high that the U.S. Congress will do the right thing this year and reform notoriously harsh federal drug sentencing laws that have crammed U.S. prisons with small-time offenders.

The bipartisan Smarter Sentencing Act, approved by the Senate judiciary committee and now awaiting debate in the full Senate, would reduce federal mandatory minimum sentences for certain drug offenders, increase the number who can avoid them altogether, and permit prisoners serving time under outdated crack-cocaine sentencing laws to seek lower sentences. Passage would begin to reverse a decades-long trend that's seen "too many Americans go to too many prisons for far too long and for no good law enforcement reason," as Attorney General Eric Holder put it earlier this year.

Although legislators may not realize it, reduction of unduly severe sentences for drug offenders will help bring federal sentencing back in line with the long-overlooked principle of "parsimony." In the criminal justice context, parsimony dictates that sentences should be no greater than necessary to serve the legitimate goals of punishment, namely, retribution for past crimes, deterrence of future ones, and rehabilitation of the offender.

Congress once recognized the importance of parsimony. In the Sentencing Reform Act of 1984, it instructed federal judges to impose sentences that were “sufficient, but not greater than necessary” to advance the purposes of punishment. But starting in 1986, against a backdrop of social and economic turmoil, racial tension, and the advent of crack cocaine, Congress enacted mandatory minimum drug sentencing laws with stunning disregard for whether they would yield needlessly harsh sentences -- which they invariably did for the low-level offenders who made up the bulk of those receiving them....

Opponents of the Smarter Sentencing Act, including some current and retired federal prosecutors, insist — without evidence – that the mandatory drug sentences are necessary to protect public safety. They also claim — and here the evidence is on their side — that the threat of high mandatory sentences helps convince defendants to plead guilty and cooperate with the government in exchange for lesser punishments. Because judges have no choice but to impose the mandatory minimums triggered by the charges prosecutors file, prosecutors can make good on the threat of higher sentences for those defendants who insist on going to trial: their sentences are on average three times longer than for those who plead. Not surprisingly, ninety-seven percent of drug defendants choose to plead guilty. Opponents of drug law reform seem to forget — or don't care — that the purposes of punishment do not include bludgeoning defendants into pleading.

Each year, hopes for federal drug sentencing reform are dashed by legislative inertia and a few powerful legislators who cling to outdated “tough on crime” notions. Perhaps this year will be different. A growing number of lawmakers, Republicans and Democrats, realize that lengthy mandatory minimum drug sentences are ineffective, wasteful, and expensive. And though few may use the term parsimony, many have come to understand that unnecessarily harsh sentences make a mockery of justice.

Saturday, June 14, 2014

Though I often advocate against lengthy federal mandatory minimum prison terms, I am not categorically opposed to legislative sentencing mandates when there is good reason to believe that the particulars of the mandate will likely save lives and have a limited impact on human liberty and the pursuit of happiness. Consequently, I was very pleased to see this story in my local paper today, headlined "All drunken drivers may be subject to safeguard," discussing a proposal in Ohio to make ignition locks mandatory for all drunk driving offenders. Here are the details:

Ohio lawmakers are considering requiring first-time drunken-driving offenders to have an ignition breathalyzer installed on their cars to confirm their sobriety during a six-month penalty period. The law now allows judges to order the ignition interlocks, but the House bill would make their use mandatory. Offenders convicted twice within six years must use the devices.

The bill sponsor, Rep. Terry Johnson, R-McDermott, cites federal figures that ignition-interlock devices reduce DUI re-arrest rates by 67 percent. About 25,000 first-time offenders are convicted each year in Ohio. The devices would replace a system in which first-time DUI offenders are not allowed to drive for 15 days and then can obtain limited driving privileges to travel to work, school and medical appointments.

“There is nothing to ensure compliance and nothing to ensure sobriety unless they happen to get caught again,” Johnson said. “This allows the offender to continue working and to minimize disruption to his life while ensuring public safety to the extent we are reasonably able to do so.”

A change in the bill last week also would require those charged with DUI but convicted of lesser offenses, such as physical control of a vehicle while intoxicated, to install the machines in their cars....

Only about 5,000 Ohioans, including repeat DUI offenders, are required each year to use ignition interlocks, said Doug Scoles, executive director of Ohio MADD. Twenty states now require their use by first-time offenders. “Requiring the use of ignition interlocks for all convicted drunk drivers will help prevent repeat offenses and, in so doing, save lives,” Scoles said.

The State Highway Patrol reports 341 people died in drunken-driving crashes last year. Seventy-seven people have been killed so far this year, 38 fewer that at the same time in 2012.

The bill is dubbed “Annie’s Law” in memory of Chillicothe lawyer Annie Rooney, who was killed last year by a drunken driver now serving eight years in prison. Her family has campaigned for passage of the bill. Lara Baker-Morrish, chief prosecutor for the city of Columbus, calls the legislation “a very good idea.”

“It does curb the behavior we’re trying to get at, and it has been proven to save lives,” she said. Courts would have to find ways to monitor the increase in ignition-interlock reports on drivers and find funding to ensure devices are made available to those who can’t afford installation and monitoring, she said.

I hope my old pal Bill Otis is heartened to hear of my support for a legislative sentencing mandate. I also hope those who advocate forcefully for rigid forms of gun control and for drug control recognize that that drunk drivers often pose a greater threat to innocent lives and the pursuit of happiness than even drunk gun owners or heroin dealers and that clever technologies, rather than crude prohibitions, may be the most politically wise and practically workable means to reduce these threats.

Thursday, June 05, 2014

Will Canada's courts continue to strike down mandatory minimums as unconstitutional?

The question in the title of this post is prompted by this interesting recent commentary in a Canadian paper sent my way by a helpful reader. The piece by Lisa Kerr is headlined, "Mandatory minimums for drug crimes have no future in Canada: As the B.C. Court of Appeal prepares to hear the first major challenge to mandatory minimums, there’s reason to think the policy will be rightly short-lived." Here are excerpts:

This week, the B.C. Court of Appeal hears the first major challenge to the latest symptom of a punitive plague: mandatory incarceration for a drug crime. The defendant, 25-year-old Joseph Lloyd, lives in the downtown eastside of Vancouver, where he struggles with addiction and regularly interacts with the court system. In the past, local judges could use their expertise to craft an individualized punishment for people like Lloyd. Community supervision, drug programming, or specific amounts of jail time could target his specific circumstances.

New legislation compels judges to impose a minimum one-year prison term on all individuals who meet a handful of criteria. Judges can no longer consider whether it is in the public interest to incarcerate someone like Lloyd, or for how long. They can no longer consider whether a person will lose housing or employment. While one year in a chaotic jail is unlikely to help a struggling individual to recover stability, that is a judge’s only option unless the law is struck down.

In the United States, the removal of discretion from sentencing judges is the central cause of its famously high rate of incarceration. There are nine million prisoners in the world. Over two million of them are in the U.S....

The arrival of mandatory sentences does not herald the “Americanization” of Canadian crime policy. The deep principles of our criminal justice system cannot be dismantled overnight. Our prosecutors are not a bloodthirsty lot — they are largely anonymous and professional public servants. Unlike many of their American counterparts, Canadian prosecutors are not subject to elections and public scrutiny. They are better positioned to pursue a broad notion of the public interest, rather than just long prison sentences.

Canadian judges are also likely to resist interference by politicians who are detached from the daily reality of human misery faced in criminal courts. And they have the tools to do so. While Canada and the U.S. have identical language in the constitutional prohibition against “cruel and unusual punishment,” the prohibition has been interpreted very differently in the courts.

In 2003, the U.S. Supreme Court upheld a life sentence for a third offence of stealing golf clubs. In 1987, the Canadian Supreme Court struck down the only previous attempt at automatic incarceration for drug crime: a seven-year term for drug trafficking. So far, mandatory sentences for non-violent drug offences are unconstitutional in this country.

Canadian institutions are likely to resist this untimely American policy transplant. There is no collapse of faith in our courts, there is no crime wave, and there is no Southern Strategy. Joseph Lloyd should encounter a court system that is free to encounter him.

Wednesday, June 04, 2014

Over 1000 faith leaders sign letter in support of Smarter Sentencing Act

As highlighted by this article, over "1,100 clergy and faith leaders urged Congress to pass legislation reducing federal mandatory minimum sentences for drug offenses in a June 3 letter to party leaders in the House and Senate." Here is more about the prominent voices joining the chorus advocating for federal sentencing reform:

“For too long, Congress has ignored the consequences of the harsh sentencing policies it approved during the 1980s and the disproportionate harm it has caused people of color and those convicted of low-level offenses,” the letter said. “The Smarter Sentencing Act is a step towards addressing racial injustice as well as reducing mass incarceration that characterizes our current justice system.”

Roy Medley, general secretary of American Baptist Churches USA, was a lead signer for the letter coordinated by the Faith in Action Criminal Justice Reform Working Group, a coalition of 43 faith organizations chaired by the United Methodist General Board of Church & Society.

Friday, May 30, 2014

US House hearing on "Penalties" as part of Over-Criminalizaiton Task Force

Taking place as I write this post is a notable hearing (which I am watching live via this link) of the Over-Criminalizaiton Task Force of the Judiciary Committee on the topic of "Penalties." Here is the witness list, with links to their written statements:

A quick scan of the submitted testimony linked above reveals that regular readers of this blog will not find all that much which is new from the witness. But the submitted statements still provide a very effective review of all the essential elements of the modern debate over federal mandatory minimum sentencing provisions.

UPDATE: TheHouse hearing adjourned just before 11am, after most of the usual suspects had the opportunity to stake out their usual positions. I doubt this hearing moved the needle in any significant way, though I still found notable and telling that the US House Representatives arguing against the modern drug war and sentencing status quo generally seemed much more passionate and animated than those eager to support the status quo.

Sunday, May 25, 2014

Detailing the Keystone State's enduring Alleyne problems

This local AP story from Pennsylvania, headlined "Supreme Court ruling snarls sentencing minimums," provides another review of the headaches that state courts are facing with its sentencing scheme in the aftermath of the US Supreme Court's Sixth Amendment ruling in Alleyne last year. Here are some excerpts:

A U.S. Supreme Court decision last year has prompted dozens of appeals in criminal cases across Pennsylvania and left judges scratching their heads on how to apply state laws on mandatory minimum sentences. The confusion has prompted meetings among judges, forced some judges to try out new jury instructions and even led some jurists to conclude that whole sections of state law are unconstitutional.

Legal experts say what happens next will be driven largely by cases already on appeal to the Pennsylvania Supreme Court. “No appellate court in Pennsylvania has gotten around to definitively deciding the question, and everybody, it seems, is waiting for someone else to decide it,” said St. Vincent College law professor Bruce Antkowiak, a former federal prosecutor and defense attorney.

The stumbling block is Alleyne v. United States, a high court decision stemming from a Virginia federal court case that found that juries, not judges, should decide whether a defendant committed crimes that trigger a mandatory minimum sentence. But Pennsylvania law says a jury decides a person’s guilt or innocence of the underlying crime, such as drug possession or robbery. A judge then uses a lower standard of proof to decide whether the mandatory sentencing “triggers” were proved — such as being in a school zone when drug dealing or brandishing a gun during the robbery.

Judges in at least one jurisdiction, Blair County in central Pennsylvania, recently decided to stop imposing mandatory minimum sentences altogether until the General Assembly rewrites the statutes. The judges made the decision after hearing arguments from prosecutors and a defense attorney for two men facing five-year mandatory minimums — one accused of dealing drugs in a school zone; the other charged with having a weapon while in possession of marijuana....

Since the Alleyne ruling, some Pennsylvania judges have begun asking juries to determine whether certain mandatory minimum triggers have been proved, even though state law doesn’t allow that. Other judges have ruled that Alleyne makes Pennsylvania criminal statutes containing mandatory minimum sentencing provisions unconstitutional in their entirety.

In eastern Pennsylvania, Lycoming County District Attorney Eric Linhardt said judges there first allowed juries to decide mandatory minimum sentences before reversing course and ruling the statutes illegal. “Ten cases are presently on appeal, and many others will soon follow,” Linhardt said, adding the impasse could affect 100 pending drug cases in his office.

Saturday, May 24, 2014

"Sentencing Debate Reveals Divide Among Republicans"

The title of this post is the headline of a recent article by John Gramlich via CQ News (which, I fear, is trapped behind a pay-wall). Here are excerpts:

A Senate proposal to cut mandatory minimum drug sentences in half has exposed a rift between senior, establishment Republicans who stress their law-and-order credentials and junior, more libertarian-minded members of the party who want to shrink the federal role in incarceration.

Sponsored by Sens. Richard J. Durbin, D-Ill., and Mike Lee, R-Utah, the bill (S 1410) is seen as a candidate for floor action following the Memorial Day recess after being approved by the Judiciary Committee, 13-5, in January. But the measure’s prospects are uncertain, with differences among Republicans becoming increasingly apparent. The bill’s six GOP cosponsors include five first-term senators: Lee, Jeff Flake of Arizona, Rand Paul of Kentucky, Ted Cruz of Texas and Ron Johnson of Wisconsin.

Several of those lawmakers have strong tea party support and view the proposal through a libertarian lens. They cast it as a way to cut taxpayer spending on prisons while preserving individual liberties by doing away with tough penalties for low-level, nonviolent drug offenders.

By contrast, the bill’s chief Republican opponents are a trio of establishment Republicans who have long pointed to their “tough on crime” bona fides. They are Majority Whip John Cornyn of Texas, a former state attorney general and judge; Jeff Sessions of Alabama, a former federal prosecutor, and Charles E. Grassley of Iowa, the Judiciary Committee’s ranking member and arguably the Senate’s staunchest defender of mandatory minimum penalties....

Beyond the philosophical disagreement, there also appears to be a generational split among Republicans when it comes to sentencing, said William G. Otis, a law professor at Georgetown University and former special counsel to President George H.W. Bush. The average age of the Republicans who voted for the bill in committee earlier this year was 45, as Slate magazine noted in February. The average age of the Republicans who opposed it was 69.

Otis, who opposes the bill, said older Republican senators may be basing their views of the legislation on their personal recollections of the national crime wave that led to tougher criminal sentencing laws. “For those of us that age, we remember what it was like, because we grew up in the ‘60s and ‘70s and the experience of the crime wave of those two decades is vivid,” Otis said. “My generation remembers that. Rand Paul’s generation, Jeff Flake’s generation and Mike Lee’s generation does not.”...

Paul, who is perhaps the Senate’s most prominent Republican supporter of shortening criminal sentences, so far has been unable to persuade Minority Leader Mitch McConnell, R-Ky., to back the plan....

Laurie A. Rhodebeck, a political science professor at the University of Louisville, said the two senators likely have different constituencies in mind. She noted that Paul may have higher political ambitions and has sought to broaden the appeal of the Republican Party by reaching out to minorities, who often face long criminal sentences for drug crimes. “The way I see the big picture is that Rand Paul seems to be speaking to a national audience right now, rather than a Kentucky audience,” Rhodebeck said. “I assume that’s in keeping with his possible interest in running for the GOP nomination in 2016.”...

To be sure, Democrats may not be united within their own ranks on the bill. Sen. Dianne Feinstein, D-Calif., and Charles E. Schumer, D-N.Y., both have expressed reservations about it, even though they agreed to advance the measure to the full Senate. GOP support for the proposal, meanwhile, is not limited only to first-term senators who are identified with the tea party. Sen. Johnny Isakson, R-Ga., is the sixth GOP cosponsor of the bill and has served in the Senate since 2005.

But the Republican split could be a consequential factor in whether the proposal reaches the floor in an election year in which control of the Senate is at stake. Majority Leader Harry Reid, D-Nev., has indicated he would like to bring up the proposal, but Durbin has suggested that there may be complications in rounding up the votes for passage. A divide among outside conservative advocates may be among the complications.

At a forum this week of conservatives in favor of overhauling the nation’s criminal justice policies, prominent figures including former House Speaker Newt Gingrich, R-Ga., and former National Rifle Association President David Keene made the case for a less punitive approach....

But a group of prominent former federal prosecutors, including two former Republican attorneys general, wrote to Reid and McConnell earlier this month to urge them not to bring the sentencing bill to the floor. Like Grassley and the other Senate Republicans, they warned it would threaten public safety.

I would put a slightly different spin than Bill Otis on the notable fact that the "average age of the Republicans who voted for the [SSA] in committee earlier this year was 45 [while the] average age of the Republicans who opposed it was 69." I would say that supporters of the bill understand that new political and legal realities may call for changing laws passed decades ago, whereas opponents of the bill see little need to update these sentencing laws for modern times.

Some older and recent posts on the "new politics" of sentencing reform:

Friday, May 16, 2014

Form, function and finality of sentences through history: the Modern Era

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice. And, as set forth in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.

As noted in prior posts, my theme is developed descriptively in the first part of my article as I showcase (perhaps too briefly) how the forms and functions of different punishment systems throughout US history provide different frameworks for the legal and practical relationship between conviction finality and sentence finality. In this post, I will reprint my article's final historical observations about sentence finality during the "Modern Era" stretching from the the 1970s through today. At the start of this period, U.S. sentencing philosophies, policies, and practices changed dramatically. Legislatures through this period have embraced determinate sentencing laws that require prison sentences for most offenses and require very lengthy prison terms for nearly all serious offenses and repeat offenders. These modern sentencing realities, in turn, has considerably changed the nature and stakes of issues surrounding sentence finality:

[Modern incarceration] statistics suggest there may now be more individuals condemned to die in America’s prisons based on their current “final” sentences than the total prison population in the 1960s when courts and scholars began earnestly discussing the importance of finality for criminal judgments. As explained before, the then-prevailing practices of indeterminate sentencing and parole entailed that the vast majority of 300,000 persons incarcerated in 1970 could take comfort in the then-prevailing reality that the duration of and justification for their ongoing prison terms would be regularly reviewed and reconsidered by corrections officials. Today, in sharp contrast, the majority of the 2.25 million incarcerated individuals in the United States cope with the now-prevailing reality that their prison sentences are fixed and final and not subject to any regularized means of review or reconsideration for any purposes.

In sum, the transformation of the sentencing enterprise and embrace of mandatory sentencing schemes throughout the United States over the past four decades has been remarkable and remarkably consequential for the considerable number of offenders sentenced to significant terms of imprisonment. The highly discretionary indeterminate sentencing systems that had been dominant for a century have been replaced by an array of sentencing structures that govern and control sentencing decisionmaking. Most pertinent to the topic of this Essay, prison sentences that had for more than a century been defined by a lack of finality are now fixed and final in the vast majority of all serious criminal cases at the moment they are announced by a sentencing judge. Consequently, two centuries of U.S. criminal justice experience in which sentence finality was not a distinct concern has given way, due to dramatic changes in sentencing laws, policies, and practices, to a modern era of mass and massive terms of incarceration that makes the treatment of final sentences arguably the most important issue for hundreds of thousands of current prisoners and for the tens of thousands more defendants being sentenced to lengthy prison terms each year throughout the United States. Sentence finality, in short, has gone from being a non-issue to being arguably one of the most important issues in modern American criminal justice systems.